United States of America v. Gustavo Alonso Ramos-Caballero

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GUSTAVO ALONSO
RAMOS-CABALLERO,
Defendant - Appellant.
No. 21-2098
(D.C. No. 2:21-MJ-00856-SMV-1)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, KELLY, and CARSON, Circuit Judges.
_________________________________
Gustavo Alonso Ramos-Caballero is charged with reentry after a removal from
this country based on a conviction for the commission of an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). He appeals from the district court’s
order affirming the magistrate judge’s pretrial detention order. Exercising
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
November 8, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 1

-- 1 of 8 --

2
I. Background
In July 2011, Mr. Ramos-Caballero pled guilty to felony second-degree assault
in state court. He was sentenced to 13 months’ imprisonment and 18 months of
probation. He was removed from the United States to Mexico in November 2014.
In June 2021, United States Border Patrol Agents encountered
Mr. Ramos-Caballero in Grant County, New Mexico. He had not crossed the border
from Mexico through a lawful port of entry, and there is no evidence that he had
applied for or received permission from the proper authorities to be or remain in this
country. When the agents asked him about his citizenship, he admitted he was a
Mexican citizen illegally present in the United States.
Mr. Ramos-Caballero was arrested and charged with illegal reentry of a
removed alien. Because the prior removal was based on a conviction for the
commission of an aggravated felony, he faces a maximum of 20 years’ imprisonment.
See 8 U.S.C. § 1326(b)(2). The government moved for his pretrial detention on the
basis that he posed a serious flight risk. See 18 U.S.C. § 3142(f)(2)(A). Probation
and Pretrial Services prepared a Pretrial Services Report recommending that he be
detained.
A magistrate judge conducted a detention hearing. After he heard argument
from the parties and considered the information presented at the hearing, he agreed
with the government that, by a preponderance of the evidence, Mr. Ramos-Caballero
should be detained as a flight risk. The magistrate judge’s order, which takes the
form of a checklist, concludes that the government proved “[b]y a preponderance of
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 2

-- 2 of 8 --

3
the evidence that no condition or combinations of conditions of release will
reasonably assure [Mr. Ramos-Caballero’s] appearance as required.” Aplt. App.
at 41. The magistrate judge specified his reasons for detention by checking boxes
indicating that the “[w]eight of evidence against the defendant is strong,” he would
be “[s]ubject to [a] lengthy period of incarceration if convicted,” he had a “[l]ack of
significant community or family ties to this district,” and had “[p]rior violations of
probation, parole, or supervised release.” Id. at 41-42.
Mr. Ramos-Caballero appealed to the district court, which held a hearing
and heard argument from the parties. No additional evidence or testimony was
presented. After considering the statutory factors in 18 U.S.C. § 3142(g), the
district court concluded that given “the weight of evidence, ties to Mexico, and
[Mr. Ramos-Caballero’s] history of willfully violating orders of the court and the
authority of the United States, . . . a preponderance of the evidence shows that [he] is
a flight risk and no condition or combination of conditions will reasonably assure his
appearance as required.” Aplt. App. at 97-98. The district court therefore ordered
that he would remain under pretrial detention.
II. Analysis
The Bail Reform Act sets out the framework for evaluating whether pretrial
detention is appropriate. See 18 U.S.C. § 3142. “In our society liberty is the norm,
and detention prior to trial or without trial is the carefully limited exception.” United
States v. Salerno, 481 U.S. 739, 755 (1987). But a defendant must be detained
pending trial if a judicial officer finds that “no condition or combination of
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 3

-- 3 of 8 --

4
conditions will reasonably assure the appearance of the person as required and the
safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). A judicial
officer may make such a finding only after holding a hearing under § 3142(f). United
States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). The government bears the
burden of proving risk of flight by a preponderance of the evidence. Id.
Under § 3142(g), the judicial officer must consider four factors as part of the
evaluation: “(1) the nature and circumstances of the offense charged”; “(2) the
weight of the evidence against the person”; (3) “the history and characteristics of the
person”; and (4) “the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.” 18 U.S.C. § 3142(g).
A district court conducts a de novo review of the magistrate judge’s order. Cisneros,
328 F.3d at 616 n.1.
Mr. Ramos-Caballero opposes the pretrial detention order on two grounds:
(1) in assessing the prescribed factors under 18 U.S.C. § 3142(g), the district court
applied improper weight to the weight of the evidence; and (2) the district court
improperly required him to demonstrate a reasonable fear and sincere intention to
seek relief under the Convention Against Torture.
We review the district court’s determinations concerning the construction and
applicability of the Act de novo. See Cisneros, 328 F.3d at 613. We also review its
ultimate pretrial detention decision de novo because it presents mixed questions of
law and fact. See id. However, we review the underlying findings of fact for clear
error. See id.
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 4

-- 4 of 8 --

5
The district court concluded, in assessing the weight-of-the-evidence factor,
that the facts weighed heavily against Mr. Ramos-Caballero. He challenges the
district court’s evaluation of this factor on two grounds. First, he contends that by
failing to consider the weight of the evidence as the least important factor the district
court in effect created a categorical denial of bail for illegal entry defendants. Def.’s
Mem. Br. at 16-18. 1 We agree that Mr. Ramos-Caballero cannot be detained solely
because he is a removable alien charged with illegal reentry. See United States v.
Ailon-Ailon, 875 F.3d 1334, 1338 (10th Cir. 2017) (“[A]lthough Congress established
a rebuttable presumption that certain defendants should be detained, it did not
include removable aliens on that list.”). But he fails to show that is what happened
here. The district court did not simply make a categorical determination that
1 Mr. Ramos-Caballero finds support for his argument in comments the
magistrate judge made at an initial hearing in this case. The magistrate judge stated
that he had “released one reentry defendant in 10 years on the bench.” Aplt. App.
at 58. That person, the magistrate judge explained, was removed as an infant,
returned when he was four years old, eventually married a United States citizen with
whom he had several children, had “started a business” that “employed over
150 people” and “had a net worth of several million dollars.” Id. at 58-59. The
magistrate judge stated that he had “certainly considered releasing a reentry
defendant under circumstances kind of like that but it would have to be real close to
something like that.” Id. at 59. These comments do not provide a basis for reversal.
The district court reviewed the magistrate judge’s order de novo and made an
individualized determination subject to our review. See Cisneros, 328 F.3d at 613,
616 & n.1. Mr. Ramos-Caballero further states that the magistrate judge’s “pattern of
denying bail to illegal reentry defendants . . . is affirmed by [his counsel’s] internal
office statistics, which show that since 2018 [that] office has taken 1,000 illegal
reentry cases, and zero have been released pretrial.” Def.’s Mem. Br. at 14. But he
provides no evidentiary support for this contention, and of course “attorneys’
arguments [are] not evidence,” United States v. Rios-Morales, 878 F.3d 978, 989
(10th Cir. 2017). Accordingly, we do not consider this argument.
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 5

-- 5 of 8 --

6
Mr. Ramos-Caballero was ineligible for release because of the evidence against him
on the illegal reentry charge. Instead, it considered the relevant factors and made an
individualized determination that he was a flight risk. In assessing his history and
characteristics the district court found that his family and community ties to the
United States were a neutral factor at best; his reluctance to disclose the whereabouts
of his partner/wife and child suggested that they resided in Mexico, significantly
increasing the risk that he would flee to join them; his prior conviction was for a
violent offense; and he had previously been removed and reentered the United States
on several occasions.
In addition, Mr. Ramos-Caballero fails to persuade us that the district court
was required as a categorical matter to assign the least weight in its analysis to the
strength of the evidence against him. The plain language of § 3146(g) does not
suggest that one factor matters more or less than another. And even where, as here,
the district court assigns great weight to the evidence against an illegal reentry
defendant, it must also consider the other relevant factors in reaching its decision—
factors that require an individualized determination that may favor one defendant
more than another. Nor is the evidence concerning illegal reentry necessarily of the
same strength in every reentry case, as Mr. Ramos-Caballero’s argument seems to
suggest. We therefore reject the argument that the district court erred in assigning
great weight to, and by failing to assign the least weight to, the strength of the
evidence against Mr. Ramos-Caballero.
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 6

-- 6 of 8 --

7
Second, Mr. Ramos-Caballero contends the district court should only have
considered the weight of the evidence to determine how it bore on the issue of flight
risk. See Def.’s Mem. Br. at 17. But the district court tied this factor to flight risk.
Notably, it viewed the evidence of Mr. Ramos-Caballero’s history of removals and
reentries, including the facts underlying his current reentry offense, to reach its
conclusion that he was “incapable of complying with the orders of the Court or the
authority of the United States.” Aplt. App. at 97.
Turning to his other issue, Mr. Ramos-Caballero argued to the district court
that he had returned to the United States with the intention of seeking relief under the
Convention Against Torture (CAT). The district court rejected this argument because
he failed to proffer evidence to establish a reasonable fear that he would be tortured
in Mexico; he failed to show a sincere intention to seek relief under the CAT because
he “did not enter the United States through a lawful port of entry where he could
claim such [relief]”; and he failed to show that if released he would not flee to
another location besides the place of the alleged threat in Mexico. Aplt. App. at 97.
Mr. Ramos-Caballero argues this analysis was erroneous because he had no
statutory burden to demonstrate his entitlement to immigration relief, or even a viable
immigration claim, to obtain pretrial release. 2 But the district court did not impose
2 He also argues the district court erred in concluding his CAT claim was not
viable because he did not enter this country through a lawful port of entry. See
Def.’s Mem. Br. at 19-20 (citing 8 U.S.C. § 1158(a)(1) as permitting an application
for asylum “whether or not” a noncitizen entered “at a designated port of arrival”).
Even if this provision of the asylum statute applies to a CAT claim, the fact that he
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 7

-- 7 of 8 --

8
such a requirement. Instead, it considered whether Mr. Ramos-Caballero’s
argument—that he was less likely to flee due to his sincere intention of invoking
CAT protection due to his fear of being tortured in Mexico—was a viable argument
in favor of pretrial release, and concluded it was not.
III. Conclusion
We affirm the district court’s detention order.
Entered for the Court
Per Curiam
failed to enter this country through a lawful port of entry was relevant to his
professed intention to avail himself of the protections afforded by a CAT claim.
Appellate Case: 21-2098 Document: 010110601321 Date Filed: 11/08/2021 Page: 8

-- 8 of 8 --